Category Archives: Home Office

Recent ICO decision notices show the Home Office and MoJ repeatedly simply failing to respond to FOI requests. Surely the time has come for ICO action?

The Information Commissioner’s Office (ICO) recently stated to me that they were not monitoring the Home Office’s and Ministry of Justice’s (MoJ) compliance with the statutory timescales required by section 10 of the Freedom of Information Act 2000 (FOIA)

This was despite the fact that they’d published decision notices about delays by those two government bodies which reported that “The delay in responding to this request will be logged as part of ongoing monitoring of the MoJ’s compliance with the FOIA”. This was not formal monitoring, I was told; rather, it was informal monitoring. Ah. Gotcha.

So what does trigger formal monitoring? Interestingly, the ICO’s own position on this has recently changed, and got a bit stricter. It’s generally meant to be initiated in the following circumstances:

our analysis of complaints received by the ICO suggests that we have received in the region of 4 to 8 or more complaints citing delays within a specific authority within a six month period

(for those authorities which publish data on timeliness) – it appears that less than 90% of requests are receiving a response within the appropriate timescales. [this used to be 85%]

Evidence of a possible problem in the media, other external sources or internal business intelligence.

Despite the apparent increase in robustness of approach, the ICO do not appear to be monitoring any public authorities at the moment. The last monitoring took place between May and July 2016 when Trafford Council were in their sights. Although they are not mentioned in the relevant report, an ICO news item from July last year says that the Metropolitan Police, who have been monitored off and on for a period of years without any real outward signs of improvement, were also still being monitored.

But if they aren’t monitoring the compliance of any authorities at the moment, but particularly the Home Office and the MoJ, one is led to wonder why, when one notes the pattern in recent ICO decision notices involving those two authorities. Because, in 16 out of the last 25 decision notices involving the Home Office, and 6 out of the last 25 involving the MoJ, the ICO has formally issued decision notices finding that the authorities had failed to comply with the FOI request in question, by the time the decision notice was issued.

At this point, it might be helpful to explain the kind of chronology and process that would lead up to the issuing of such decision notices. First, a request must be made, and there will have been a failure by the authority to reply within twenty working days. Then, the requester will normally (before the ICO will consider the case) have had to ask for an internal review by the authority of its handling of the request. Then, the requester will have complained to the ICO. Then, the ICO will have normally made informal enquiries of the authority, effectively “geeing” them up to provide a response. Then, as still no response will have been sent, the ICO will have moved to issuing a formal decision notice. At any point in this process the authority could (and should) still respond to the original request, but no – in all of these cases (again – 16 of the last 25 Home Office decisions, 6 of the last 25 MoJ ones) the authorities have still not responded many months after the original request. Not only does this show apparent contempt for the law, but also for the regulator.

So why does the ICO not do more? I know many FOI officers (and their public authority employers) who work their socks off to make sure they respond to requests in a timely manner. In the absence of formal monitoring of (let alone enforcement action against) those authorities who seem to ignore their legal duties much of the time, those FOI officers would be forgiven for asking why they bother: it is to their credit that bother they still do.

Elizabeth Denham became Information Commissioner in July last year, bringing with her an impressive track record and making strong statements about enforcing better FOI compliance. Her first few months, with GDPR and Brexit to deal with, will not have been easy, and she could be forgiven for not having had the time to focus on FOI, but the pressing question now surely is “if not now, when?”

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

between 15 and 28 October 2013 some personal data was available on the Home Office website as part of a spreadsheet alongside the regular data set in error. This was identified by Home Office officials on 28 October 2013 and the personal information was removed immediately. The personal data related to the names of 1,598 main applicants in the family returns process, their date of birth and limited details about their immigration case type and status

On these conceded facts this would appear to be a clear breach of the Data Protection Act 1998 (DPA), and, specifically, the principles of Schedule 1 to the Act which require that processing be fair and lawful, and that appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data. But what are the implications of this?

By virtue of section 4(4) of the DPA a data controller – in this instance the Home Office – must comply with those principles. A serious contravention of them, of a kind which is likely to cause substantial damage or substantial distress, can (by section 55A) invoke the powers of the Information Commissioner’s Office (IC) to serve a monetary penalty notice, to a maximum of £500,000. Whether the IC would exercise his discretion to do so would depend on various factors. Firstly, he would need to satisfy himself whether the personal data involved was “sensitive”. Sensitive personal data is afforded greater protection by the DPA, and breaches involving it are accordingly more serious. We are told that the information involved here consisted of people’s names, dates of birth, and their immigration status. Information about a person’s racial or ethnic origin is sensitive personal data – could one derive or infer that from the mistakenly disclosed information? This will be an important question to answer. But, additionally and more simply, it seems that these were “illegal immigrants” – the data was related to immigration family returns, and this would certainly seem to imply either the commission or alleged commission of an offence by those whose data was exposed, and this would also move the data into the category of “sensitive”.

Whether the apparent contravention was likely to cause substantial damage or substantial distress is less clear. The minister points out that there appear to have been fewer than thirty page views, but that we don’t know whether any of those people accessed or downloaded the data. But this perhaps overlooks the part of the statutory scheme which talks about whether the contravention was “of a kind likely” to cause the damage or distress. If for instance, this incident, which we are told is being investigated by the IC, is a symptom of inappropriate or insufficient data security measures, then that factor, rather than this discrete incident, could potentially give rise to sanctions. Also relevant might be what efforts the Home Office has taken to ensure that cached versions of the data have been removed from the internet – it is remarkably easy for information quickly to be captured and mirrored elsewhere, by automated web services.

The IC’s powers are not limited, however, to issuing monetary penalties. He can also issue enforcement notices requiring data controllers to take specified actions, and a breach of an enforcement notice can be a criminal offence. Less seriously, he can simply make a determination as to whether there is likely to have been a breach of the DPA. And he can take informal action, requiring a responsible person at the ministry to sign an undertaking to improve compliance.

The transparency agenda

What I also find noteworthy is that the minister prefaces his statement with remarks about the government’s commitment

to openness and transparency to enable the public to hold the government and other public bodies to account. This government has made more data available than ever before…

These are laudable aims and actions, but, I have written before that the transparency agenda carries with it risks that, in the rush to publish more and more data, there will be privacy and data protection breaches. And if the government and the IC, as regulator, do not do more to alert people to these risks they must be aware that they risk being seen as complicit in such breaches. As I said in my piece for The Guardian

The IC must work with the government to offer advice direct to chief executives and those responsible for risk…So far these disclosure errors do not appear to have led to harm to those individuals whose private information was compromised, but, without further action, I fear it is only a matter of time.

Do Home Office tweets of people arrested on suspicion of committing immigration offences engage data protection law?

The recent sordid campaign by the Home Office to publicise their “crackdown on illegal immigration” involved the tweeting of pictures of people apparently arrested in connection with immigration offences. I’m loath to post links because any further publicity risks undermining my point in this piece, but suffice to say that two pictures in particular were posted, one of a man being escorted (police officers at either side of him, holding his arms) from what look like retail premises, and one of a man being led by other officers into a cage in the back of a van. In both cases, the person’s face has been blurred by pixelation. There have been suggestions that the broader aspects of the campaign (disgracefully, vans have been deployed displaying advertisements saying “In the UK illegally? Go home or face arrest“) might be unlawful for breach of the Public Sector Equality Duty, and some have argued that to use the hashtag #immigrationoffenders to accompany pictures of people only suspected of crime might be to prejudge a trial, and could even constitute contempt of court. However, I would argue that the tweets also engage, and potentially breach, data protection law.

For the sake of this argument I will work on the presumption that, because the images of their faces have been obscured no third party can recognise the individuals concerned (I think this is actually probably wrong – potential identifying features, such as location and clothing are still displayed, and it is quite likely that friends, relative, colleagues could identify them). However, this does not mean that the images are outwith the Data Protection Act 1998 (DPA) and the European Data Protection Directive 95/46/EC to which it gives effect. The former defines personal data as

data which relate to a living individual who can be identified—
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller [emphasis added]

In this instance the Home Office (or its agents) must itself know who the people in the images are (they will have had sufficient identifying information in order to effect an arrest) so, in their hands, the images constitute the personal data of the people in them. As the Information Commissioner’s Office (ICO) explains

It is important to remember that the same piece of data may be personal data in one party’s hands while it may not be personal data in another party’s hands…data may not be personal data in the hands of one data controller…but the same data may be personal data in the hands of another data controller…depending on the purpose of the processing and the potential impact of the processing on individuals

So the taking, retaining and publishing of images of people whose identities are obscured but who can be identified by the data controller will constitute the processing of personal data by that data controller. Consequently, the legal obligations for fair and lawful processing apply: section 4(4) of the DPA imposes a duty on a data controller to comply with the data protection principles in relation to all personal data with respect to which he is the data controller. Lord Hoffman explained this, in the leading FOI (and DPA) case on identification

As the definitions in section 1(1) DPA make clear, disclosure is only one of the ways in which information or data may be processed by the data controller. The duty in section 4(4) is all embracing. He must comply with the data protection principles in relation to all “personal data” with respect to which he is the data controller and to everything that falls within the scope of the word “processing”. The primary focus of the definition of that expression is on him and on everything that he does with the information. He cannot exclude personal data from the duty to comply with the data protection principles simply by editing the data so that, if the edited part were to be disclosed to a third party, the third party would not find it possible from that part alone without the assistance of other information to identify a living individual. Paragraph (b) of the definition of “personal data” prevents this. It requires account to be taken of other information which is in, or is likely to come into, the possession of the data controller. Common Services Agency v Scottish Information Commissioner (Scotland) [2008] UKHL 47

So the Home Office cannot merely edit the data (by pixelation) and thus exclude it from the duty to process it in accordance with the data protection principles: these images are personal data. Moreover, they will come under the subset known as sensitive personal data, because they consist of information as to the commission or alleged commission by the data subject of any offence (they might also fall into this subset because they show the racial or ethnic origin of the data subject, but this is less certain).

The first data protection principle requires that

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

As this is sensitive personal data, a Schedule 3 condition must be met in order for the processing to be fair and lawful. Try as I might, I cannot find one that is (I adopt the list as explicated by the ICO)

The individual who the sensitive personal data is about has given explicit consent to the processing.

The processing is necessary so that you can comply with employment law.

The processing is necessary to protect the vital interests of: – the individual (in a case where the individual’s consent cannot be given or reasonably obtained), or- another person (in a case where the individual’s consent has been unreasonably withheld).

The processing is carried out by a not-for-profit organisation and does not involve disclosing personal data to a third party, unless the individual consents. Extra limitations apply to this condition.

The individual has deliberately made the information public.

The processing is necessary in relation to legal proceedings; for obtaining legal advice; or otherwise for establishing, exercising or defending legal rights.

The processing is necessary for administering justice, or for exercising statutory or governmental functions.

The processing is necessary for medical purposes, and is undertaken by a health professional or by someone who is subject to an equivalent duty of confidentiality.

The processing is necessary for monitoring equality of opportunity, and is carried out with appropriate safeguards for the rights of individuals.

It will be noted that the two conditions emphasised by me in italics might be thought to apply, but one notes the word “necessary”. In no way were these tweets “necessary” for the purposes to which those conditions relate. By contrast, when authorities publish photographs of wanted criminals, the necessity test will normally be made out. It is, I suppose, just possible that the data subjects gave their explicit consent to the tweets, but that’s vanishingly unlikely. (A question does arise as to what conditions permit the processing by the police of pixelated images of potential offenders in programmes such as “Police, Camera, Action” and “Motorway Cops”: it may be that this has never been challenged, but it may also be that the data controller is in fact the film company, who might be protected by the exemption from much of the DPA if the processing of data is for journalistic purposes).

(I would observe, in passing, that many customary practices to do with publication of information about crimes or suspicion of criminal behaviour are potentially in breach of these provisions of the DPA if they are construed strictly. Although there is the journalistic exemption mentioned above, those to whom that exemption arguably does not apply (bloggers, tweeters, police, other public authorities) are at risk of breach if they, for instance, publish identifying information about people who have criminal convictions or are suspected of having committed a crime. This area of the law, and its implications for open justice, have not, I think, been fully played out yet. For discussions about it see my post and others linked here.)

If no Schedule 3 condition can be met, the processing will not be in accordance with the first data protection principle, and the data controller will be in breach of section 4(4) of the DPA. What flows? Well, probably very little – the data subjects have a right to serve a notice (under section 10 of the DPA) requiring the cessation of processing which is causing or likely to cause substantial unwarranted damage or distress. Additionally, they have a right either to bring a civil claim for damages (very difficult to show) or to complain to the ICO. However, data subjects like this are not necessarily going to want to assert their rights in a strident way. The ICO himself could intervene – he has the power to take enforcement action if he is satisfied a data controller has contravened or is contravening the data protection principles (and, much to his credit, he has recently issued notices against a Council which was requiring taxi drviers to instal CCTV/audio recording facilities in all cabs, and against a Police force which was operating a “ring of steel” ANPR network). It appears though that the Home Office twitter account has gone quiet (it hasn’t tweeted in several days). Perhaps there have been second thoughts not just about the legality, but also the morality, of the campaign. I am always the optimist.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.